Thursday, Oct 27 2011
• 1:32 p.m. (ET)

“Occupy Wall Street” and Protesters’ Rights

2nd week of Occupy D.C., in McPherson Square. The sign is almost completely faded.
Flicker user vpickering. Some rights reserved.

This week hundreds of “Occupy Wall Street” protestors around the country have been arrested, sometimes clashing with police dressed in riot gear. But protesters and police in D.C. have largely avoided the confrontations seen in other cities. We explore the laws that govern police actions and protester rights in Washington.

Guests

Mara Verheyden-Hilliard
Attorney, Partnership for Civil Justice

D.C.’s “First Amendment Rights and Police Standards Act”

Following an investigation into police actions during anti-globalization protests, the D.C. Council passed the “First Amendment Rights and Police Standards Act of 2004.” The law created a new set of guidelines for police activity during demonstrations, banning such practices as “kettling” or “trap and detain” actions. It also made it easier for protesters to acquire permits for demonstrations larger than fifty people, and allows smaller groups to demonstrate downtown without a permit. Current Ward 3 Councilmember Mary Cheh helped draft the law as Special Counsel to the D.C. Council’s Judiciary Committee. In this 2005 academic paper, she describes “lessons learned” from the investigative process.

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Transcript

13:34:50

MR. KOJO NNAMDIPast few days, hundreds of protestors from Orlando to Oakland have been arrested during the Occupy Wall Street protests. The movement is now more than two months old and in more than 1,000 cities and it's testing the patience and resources of police departments nationwide. Nearly a decade ago, Washington, D.C. was Ground Zero for violent clashes between protestors and police during an IFM World -- IMF World Bank meeting. But this time around, confrontations between police and protestors at McPherson Square have been minimal.

13:35:22

MR. KOJO NNAMDIIt's a weary, but respectful distance that was carved from years of lawsuits and reforms. So how did D.C. become a leader in the laws that govern police action and protestors rights and what can other cities learn from us? Well, joining us in studios Mara Verheyden-Hilliard, attorney with the Partnership for Civil Justice and co-chair of the National Lawyers Guild Mass Defense Committee. Mara, good to see you again.

13:35:48

MS. MARA VERHEYDEN-HILLIARDGood afternoon.

13:35:48

NNAMDIWe are seeing violence escalate at Occupy Wall Street protest sites around the country, especially in Oakland where protestors were met with riot gear and tear gas this week. What has been happening here locally? What have relations been like between D.C. protestors and police?

13:36:05

VERHEYDEN-HILLIARDWell, as you mentioned, 10 years ago -- more than 10 years ago, there was a period from about 2000 to 2005 where it was nearly impossible to go out to a mass demonstration in Washington, D.C. without being met by police in riot gear with threat of violence, with actual violence, with beatings, with mass arrests. And that has changed dramatically here in the nation's capital. Right now people are engaged in two actions downtown. There have been marches, demonstrations, ongoing encampments. And the tenor in the district has just changed completely as a result of more than a decade of hard fought litigation and intervention by the D.C. Council.

13:36:46

NNAMDIThe 2002 World Bank protests in Pershing Park marked a real turning point for Washington, D.C.'s approach to dealing with protestors. Remind us again, the rocking history that lead to this separate piece, if you will.

13:37:00

VERHEYDEN-HILLIARDWell, actually beginning two years earlier in April 2000, there was IMF World Bank demonstrations that occurred and on the -- on Saturday April 15th, the D.C. police engaged in a mass trap and detain arrest where they stopped a lawful demonstration of a couple thousand people. They trapped them up on a side street. They would not allow anyone to leave. They took those folks in, put them on buses, tied them up tightly behind their backs. Others were tied up wrist to ankle for more than 24 hours, left on police gym floors, not allowed to use the bathrooms. And it was really extreme.

13:37:39

VERHEYDEN-HILLIARDAnd extremely punitive. And intentionally, we believe -- set out to basically take the wind out of demonstration, a preemptively attack, lawful, peaceful, political action. They did the same thing again in Pershing Park in September of 2002 when approximately 400 people were rounded up and detained in Pershing Park. And our organization, the Partnership for Civil Justice Fund fought two class action lawsuits for a decade on those two cases. And the result of which, those cases and the intervention of the D.C. Council, they held a long running investigation into police conduct and the context of first amendment activities.

13:38:20

VERHEYDEN-HILLIARDIt changed the landscape in Washington, D.C. There are now restrictions, both from the settlement agreements and under the law on what police may and may not do. And, for example, that trap and detain tactic which are office sought to dissect and take apart piece by piece is no longer usable in the district. The police cannot send out police in riot gear absent for a particular circumstances. They cannot surround a demonstration from taking place, block people from being able to leave and just do mass false arrests like that anymore. And we don't see them anymore.

13:38:56

NNAMDI800-433-8850 is the number to call if you'd like to participate in this conversation. Do you think the Occupy Wall Street protestors have worn out their welcome? Have they maintained their focus and identity? 800-433-8850 or you can send email to kojo@wamu.org, send us a tweet @kojoshow or go to our website kojoshow.org. Our guest is Mara Verheyden-Hilliard, attorney with the Partnership for Civil Justice and co-chair of the National Lawyers Guild Mass Defense Committee.

13:39:28

NNAMDIThe Partnership for Civil Justice has been active with the New York City branch of these protests. You filed a class action lawsuit on behalf of the protestors arrested on the Brooklyn Bridge, earlier this month. What is the basis of that lawsuit?

13:39:42

VERHEYDEN-HILLIARDWell, the very same tactic that we dismantled in Washington, D.C. is a tactic that other police agencies use. And we're also litigating a case in Oakland as it happens from a similar trap and detain mass arrest with attorneys in Oakland. And in New York at the Occupy Wall Street demonstrations on October 1st, groups of demonstrators, a large group of demonstrators were engaged in a completely peaceful demonstration marching over the Brooklyn Bridge to connect with people in Brooklyn, and the police stopped the demonstration as people were going up on the walkway section of the Brooklyn Bridge.

13:40:18

VERHEYDEN-HILLIARDThere was sort of a log jam as people waited to approach. The police were standing in the roadway of the eastbound lanes of the Brooklyn Bridge, the vehicular lanes, and then they allowed the demonstration, and indeed, video shows police command leading the demonstration onto the Brooklyn Bridge. They take them about halfway across, they prevent forward movement, they then throw out orange netting and blocked people from leaving, and then they just mass arrested everyone, and it was the identical tactic that we found in D.C.

13:40:47

NNAMDITrap and detain?

13:40:47

VERHEYDEN-HILLIARDTrap and detain. And it's also called kettling, and it's a completely illegal tactic. And the basic underlying assumption is, you know, that the police are given this really one of the most significant authorities there is, which is to deprive someone of their liberty, to take them away, to put them in jail, and to be to be able to exercise that authority, and to give orders, they have to give lawful orders and they have to orders that people have an opportunity to hear and to comply with, and that's not what's happening.

13:41:14

NNAMDI800-433-8850. What do you remember about the IMF World Bank protests in 2002? Have you ever been part of a protest? How were you treated by police? 800-433-8850. You can send email to kojo@wamu.org. We talked earlier about the fallout from the 2002 protests, and they ultimately led to the passage of the First Amendment Rights and Police Standards Act which spelled out the rights of police and protestor. You mentioned some of the provisions. I'd like to just go over a few more. It is not an arrestable offense to parade without a permit in Washington D.C.

13:41:48

VERHEYDEN-HILLIARDI'd say that that's one of the most significant changes in the District of Columbia. In fact, the Act very explicitly removes basically the word permitting, and it is lawful for people to engage in demonstration activity under the constitution and under the law here you cannot be arrested for parading without permit. Now, the police can, you know, decide that there are traffic issues, they could give orders that are appropriate, you know, under the circumstances, but the reality is that, you know, having people mass assemble, having people demonstrate, it's just simply not an offense that needs to be criminalized and should be criminalized

13:42:23

VERHEYDEN-HILLIARDAnd I think that that's really a huge seat change in the District, and it's a message that we want to send to the NYPD, because if here in the nation's capital where you certain have, you know, whatever range of security issues, you can have lawful assembly without a police state. The NYPD needs to get that message which is why the Partnership for Civil Justice has filed the class action in New York City, and did it quickly.

13:42:44

VERHEYDEN-HILLIARDThe demonstrators wanted us to take swift action to send a message to the police that they just can't be coming out, rounding up demonstrators, without, you know, with complete false arrests and throwing them in jail.

13:42:56

NNAMDIAllow me to go to the phones. We'll start with Daphne in Delaplane, Va. Daphne, you're on the air. Go ahead, please.

13:43:03

DAPHNEYes. Thank you very much for having this conversation. I think it's a critical conversation. I was part of the World Bank organization and protests back in early 2000, and I was witness to the police tactics, and watched some of my colleagues from other countries stand terrified as the police surrounded these protests. And, of course, they were at even greater risk than we were because they might potentially lose their ability to come back to the United States if they had been arrested. So thank you for your hard legal work.

13:43:39

DAPHNEMy question -- I have two questions. One is the World Bank annual meetings have now become just routinely shut down, you know, shut down streets all within a perimeter of the World Bank, and I'm wondering is that legally justified given the lawsuits that you've been filing and the successes that you had. And secondly, given what's happening in Oakland and other cities around the country in terms of the police brutality, how can we make sure that the achievements that you've won on D.C. can be recognized around the country so that we don't have this kind of kettling and police brutality happening elsewhere?

13:44:22

VERHEYDEN-HILLIARDWell, I think you for your comments, and I think your questions are very central questions. I mean, it really does raise this question when the police, you know, or government officials carry on about how they don't want traffic disrupted, and then they shut down huge swaths of metropolitan areas to accommodate, you know, the bankers and the financiers, you know, who come for their meetings. I mean, it's really just that they have a problem with mass assembly, not they have a problem with traffic obstruction.

13:44:48

VERHEYDEN-HILLIARDNow, the issues when they shut down large areas around the site of demonstrations goes to the constitutional right of people to assemble within sight and sound to be able to express their point of view and be able to communicate that point of view. So we have fought against, for example, protest pits or protest pens, or efforts to shove people out of sight and sounds. So while they may have an ability to close certain areas close into what they assert as a national security protectorate or something along those lines, they cannot push demonstrators back and far away from ability to communicate their message to the people that they want to communicate to.

13:45:22

VERHEYDEN-HILLIARDAnd the police brutality around the country, and I -- that's -- it's really just stunning and defining, you know, people try and use this sort of equal sign like the demonstrations have turned violent. The demonstrators are not violent. The violence is coming from the police. In Oakland two nights ago, there was a young who is in the hospital right now, in critical condition, in an induced coma because the police shot him in the head with a tear gas canister.

13:45:49

VERHEYDEN-HILLIARDHe has a skull fracture, and people don't know, you know, whether he will survive, whether he will be brain damaged. That was, you know, a group of demonstrators, and people can see the video of the Oakland Police shooting projectiles into the crowd of demonstrators, shooting flash grenades, tear gas canisters, and it was an extremely brutal crackdown. We've seen the New York Police pepper spraying people, throwing people on the ground, beating people, punching them.

13:46:15

VERHEYDEN-HILLIARDYou know, we used to have that conduct here in D.C. at demonstrations regularly and represented a lot of folks who were brutalized. Fortunately, as I said we're -- that's been pushed back here in the District at least for now.

13:46:26

NNAMDIGot to take a short break. Daphne, thank you very much for your call. When we come back, we'll be continuing this conversation. I want to talk to you about what Mayor Kasim Reed of Atlanta had to say about the protests there. 800-433-8850 is the number to call. You can also go to our website, kojoshow.org. Join the conversation there. We're talking about protest rights and the Occupy Wall Street demonstrations. I'm Kojo Nnamdi.

13:48:42

NNAMDIWelcome back to our conversation with Mara Verheyden-Hilliard. She's an attorney with the Partnership for Civil Justice, and co-chair of the National Lawyers Guild Mass Defense Committee. We're talking about protestors rights and the Occupy Wall Street demonstrations. In some cities, specifically Atlanta, officials seem to be losing patience with protestors and revoking orders that allow protestors to camp out in public places. I have two questions for you, Mara Verheyden-Hilliard. One is can they do that.

13:49:10

NNAMDIThe other, allow me to quote fairly extensively from Atlanta Mayor Kasim Reed, because on October 17, he extended his order allowing the protests saying, "Civil disobedience is an appropriate form of expression provided that it's peaceful, nonviolent, and lawful. As of today they Occupy Atlanta protestors continue to assemble in a peaceful non-violent fashion in Robert W. Woodruff Park. Therefore, I have extended the Executive Order allowing Occupy Atlanta to remain in Woodruff Park after the park closes," and made it effective through the adjournment of the next Atlanta City Council meeting on November 7.

13:49:51

NNAMDIAnd then there is this. Late Tuesday, Reed revoked that earlier executive order citing concerns about public safety and escalation tension in the park. Throughout the day on Tuesday he said one protestor openly walked through the park with an AK-47 assault rifle. Quoting him again from his statement, "There were increasingly dangerous situations in Woodruff Park," which contributed to his decision. "Occupy Atlanta protestors attempted to hold an unsanctioned concert over the weekend without providing the required security or crowd control plan.

13:50:24

NNAMDILast week, demonstrators inserted wire hangers into electrical sockets to create additional power sources. A number of other fire code violations occurred, including repeated storage of propane heaters and 20-gallon propane tanks inside tents. With more than 75 tents located in a confined area, these actions demonstrated a persistent and dangerous disregard for public safety." What do you think would be an appropriate response to those alleged actions by the protestors on the part of the city of Atlanta?

13:50:55

VERHEYDEN-HILLIARDWell, I think it's important to understand those kind of allegations in context. We have historically always seen that kind of rhetoric come from government officials when they're trying to prepare the population to accept a crackdown against demonstrators. It's a demonization tactic. I mean, they're not gonna come out and say we're done with the demonstrations and we're just gonna take away people's free speech rights. They're gonna come out and say we have a pretext. We have a basis.

13:51:17

VERHEYDEN-HILLIARDThey did that in April 2000 when they shut down the D.C. Convergence Center, and we were able to demonstrate that everything they said was false. We had Chief Ramsey coming out and said they had a pepper-spraying making operation when instead they were making gazpacho soup in a kitchen. They said they had Molotov cocktails. We have ATF reports that say there was nothing of the sort.

13:51:35

NNAMDISo the mayor is just lying is what you're saying?

13:51:37

VERHEYDEN-HILLIARDWell, I think that you really have to look at that. If someone walked through the crowd with an AK-47, wouldn't the police have arrested that person with an AK-47, and you can...

13:51:44

13:51:47

13:51:48

13:51:50

VERHEYDEN-HILLIARDYou know, and then you can hardly turn around and say that all the demonstrators are somehow a mob. I mean, we had Tea Party groups demonstrating all over the United States armed.

13:51:58

NNAMDI(unintelligible) , yes.

13:51:59

VERHEYDEN-HILLIARDArmed. And we did not see the police coming out with riot gear and arresting them and shooting them with projectiles and all of that. So I think we have to recognize the political nature of this. There is a growing drumbeat to try and suggest -- they did that in New York to say that they had sanitations problems when in fact they were keeping that park really clean. These are protectoral bases to wipe out First Amendment activity, and I think it's important that people be able to stand up to those, to be able to show that there isn't a basis for the allegations that are made. And at the outset of that...

13:52:29

NNAMDISo that whole business about attempting to hold a concert over the weekend without permits, et cetera, you're saying is simply not true?

13:52:36

VERHEYDEN-HILLIARDWell, I think I would distinguish the concert from the issue of a threat to public health and safety. I mean, maybe someone doesn't the like the music, but I just don't think that having a concert is the biggest threat to public safety that anyone can find, and if they have a problem because people are having unpermitted singing and music, you know, that I just don't think is grievous enough to try and sweep out a park.

13:52:56

VERHEYDEN-HILLIARDBut the fact that the mayor initially sort of granted the license for free speech activities, our rights to free speech are not given to us from officials. We have a fundamental right to free speech activity and it's a problem when you have officials saying I'm going to give you this particular authorization to engage in your constitutional rights, and now I'm going to take them away and arrest you.

13:53:14

NNAMDIWell, we had a similar situation here in the District of Columbia with a protest that was taking place at Freedom Plaza where the National Park Service at first apparently said you have to get out of here, and then the National Park Service said no, we're gonna allow you to stay for another, I guess, three or four months...

13:53:28

VERHEYDEN-HILLIARDFour months.

13:53:29

NNAMDI...four months is what the National Park Service said. Apparently, you object to that also, because you seem to be saying that the National Park Service has no right to tell people whether they can congregate there or not.

13:53:38

VERHEYDEN-HILLIARDI object to any government officials or police agencies coming in and trying to mass arrest and sweep people out of public space. If the park service makes a determination that they feel it's in, you know, whatever interest to not take action to mass arrest or sweep people out of assembly, that's fine.

13:53:55

NNAMDII guess I'm asking, ideally, what do you see happening in these situations? Protestors and officials negotiating and reaching some kind of agreement?

13:54:03

VERHEYDEN-HILLIARDWell, in a lot of situations that we're seeing around the country, and in response to the earlier callers question about free speech fights, there are amazing lawyers, hundreds of lawyers under the National Lawyers Guild Mass Defense Committee and others who have jumped in to help all around the country in small towns, big cities, who are out at the occupied demonstrations who are fighting for rights.

13:54:22

VERHEYDEN-HILLIARDThere a lot of places people have sought permits and the police have completely illegal ordinances that are just not constitutionally sound to try and stop people from assembling. So I don't think the problems lie with the demonstrators. I think the problems, you know, really lie with an aggressive government or police force in a lot of cities based on political concerns, and, you know, as the demonstrators are saying, I mean, when the police come out and they act as the representatives of the one percent against these folks that are peacefully assembling in parks, you know, whose greatest crime is that they're, you know, playing music too loud, I don't think that's a basis to take criminal action against people.

13:54:56

NNAMDII'll speak on behalf of Mayor Kasim Reed, because he's not here himself. You're saying that I'm a representative of the one percent simply because I'm trying to run a city without have a lot of problems?

13:55:06

VERHEYDEN-HILLIARDI don't think a group of people in a park is a lot of problems. I would imagine, and I think we all know, Atlanta may have far problems than that, and there are probably a lot of folks in communities in Atlanta that would like to have a fair amount of government attention to address real problems that people face every day. I mean, let's not lose sight of why people are out all over the country in this unprecedented action that's taking off from the Arab Spring.

13:55:26

VERHEYDEN-HILLIARDI mean, you have people who are in the streets who have given up a lot to go stand out against the elements to make a stand, to say something about the huge vast distribution of wealth in this country. When you have, you know, the top 400 wealthiest people in the world earning -- owning -- owning more than half of the world's wealth, more than three billion people, you have a problem.

13:55:50

VERHEYDEN-HILLIARDAnd when people, you know, in the United States, historically their parents, you know, thought, well, if I get my kids to college and, you know, I can get a stable income, and they can have a stable income for their kids, people want jobs, they want to work, and there aren't jobs. There is a problem when that's the reality that people are faced with, and now people are engaged in a collective action. They're standing up together to fight for something, for social change which is how all social changes happen in this country. So I think you know, for all of the folks that are standing with them in whatever support capacity, it says a lot about what's happening.

13:56:22

13:56:26

SIMONThanks Kojo. Thanks Mara. I was arrested in the April 16, 2000 IMF World Bank protest for parading without a permit. And at the time, the District had something called the post and forfeit, where basically you gave a police officer $50 cash and they allowed you to walk out of the jail cell without even any record. Later I tried to go back and find records of this arrest for job application purposes and was told that weren't even any records available. Is that still around that is there any legal basis for that?

13:56:58

VERHEYDEN-HILLIARDWell, D.C. has a -- and many cities or jurisdictions have sort of a citation release process, and in D.C. they have what is called post and forfeit where for certain types of, you know, minor issues, the police can make a determination that they allow people to post bond, as you said 50, these days it's like a hundred, and then, you know, get out of jail at that moment, and then you can actually come back if you want and request a return date so that you can come back into court and seek basically an arraignment or a challenge.

13:57:34

VERHEYDEN-HILLIARDSo you don't give up your right to challenge an illegal arrest, but it's a way to get out, although I think that there have always been questions about what happens with that money.

13:57:42

NNAMDIMara -- thank you for your call, Simon. See if you can answer Louise's question in ten seconds or less. We don't have a lot of time. Louise, you're on the air. Go ahead, please.

13:57:51

LOUISEGood afternoon. I've been -- my name is Louise and I've been protesting over 35 years.

13:57:57

NNAMDIBut you wanted -- you have a specific question. Louise participated in the Keystone Pipeline protest. Police brought in attack dogs and took pictures and cordoned them off. Is that legal?

13:58:06

VERHEYDEN-HILLIARDWell, there are different elements there, and I would say that you may have been dealing with park police as well, and no. I think that any excessive force is not legal, and the issue of the photographs and the collection of information we're fighting.

13:58:19

NNAMDIMara Verheyden-Hillard is an attorney with the Partnership for Civil Justice and co-chair of the National Lawyers Guild Mass Defense Committee. Thank you for joining us.

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